Loretto v. Teleprompter Manhattan CATV Corp.

• Decision Date: 17 February 1983
• Parties: , 446 N.E.2d 428 Jean LORETTO, on Behalf of Herself and All Others Similarly Situated, Appellant, v. TELEPROMPTER MANHATTAN CATV CORP. et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 743

459 N.Y.S.2d 743

58 N.Y.2d 143, 446 N.E.2d 428

Jean LORETTO, on Behalf of Herself and All Others Similarly Situated, Appellant, v. TELEPROMPTER MANHATTAN CATV CORP. et al., Respondents.

Court of Appeals of New York.

Feb. 17, 1983.

Michael S. Gruen, Daniel J. Sullivan and Eric B. Levine, New York City, for appellant.

Michael Lesch and John G. Nicolich, New York City, for Teleprompter Manhattan CATV Corp. and another, respondents.

Frederick A.O. Schwarz, Jr., Corp. Counsel, New York City (John C. Brennan, Leonard Koerner and Alfred Weinstein, Asst. Corp. Counsels, New York City, of counsel), for City of New York, respondent.

Robert Abrams, Atty. Gen. (Lawrence J. Logan and Peter H. Schiff, Asst. Attys. Gen., of counsel), in his statutory capacity under section 71 of the Executive Law.

OPINION OF THE COURT

MEYER, Judge.

The Supreme Court in reversing our order of affirmance in this case (457 U.S. ----, 102 S.Ct. 3164, 73 L.Ed.2d 868, revg. 53 N.Y.2d 124, 440 N.Y.S.2d 843, 423 N.E.2d 320) ¹ and remanding to us for further proceedings not inconsistent with its opinion did not question our holding that section 828 of the Executive Law was a proper exercise of the police power (457 U.S. at p. ----, 102 S.Ct. at pp. 3170-3171) but held that the "otherwise valid regulation so frustrates property rights that compensation must be paid" (id.; see, also, 457 U.S. at p. ----, 102 S.Ct., at p. 3179). It expressed no opinion, however, on the amount of compensation due, leaving that question for the courts of this State to determine on remand (457 U.S., at p. ----, 102 S.Ct., at p. 3179).

Before us on remand, plaintiff argues (1) that, her action being in trespass and defendant TelePrompter being without power to condemn, she is entitled to damages on a trespass theory; (2) that section 828 of the Executive Law does not authorize the commission it creates to adjudicate compensation or provide for compensation as to crossover installations; and (3) that the section is unconstitutional because it violates the separation of powers doctrine, and fails to provide for compensation or security in advance of taking, and violates due process in that notice is not given the owner and that the commission is biased. ² We conclude that the judgment, 98 Misc.2d 944, 415 N.Y.S.2d 180, entered by Special Term should be modified (1) to make clear that its declaration of the validity of section 828 is subject to the fixation of compensation by the commission upon application to it, (2) to declare the commission's regulation 598.3 (9 NYCRR 598.3) invalid, and (3) to retain jurisdiction for the purpose of reviewing whether the compensation fixed by the commission constitutes just compensation within the meaning of the Constitution, but to permit plaintiff, if she be so advised, to proceed with her action in trespass for t period between February 28, 1972, the date on which she took title to 303 West 105th Street, and January 1, 1973, the effective date of section 828. Except as so modified, the judgment should be affirmed, with costs to plaintiff.

I

We held and the Supreme Court agreed that section 828 is a valid exercise of the police power. From the effective date of that section, therefore, TelePrompter's "invasion" of plaintiff's property was in pursuance of law and not a trespass (Brewster v. Rogers Co., 169 N.Y. 73, 80, 62 N.E. 164). As to the period between plaintiff's acquisition of title and the effective date of the section there are, as outlined in our earlier opinion (53 N.Y.2d, at pp. 134-136, 440 N.Y.S.2d 843, 423 N.E.2d 320), issues of fact. TelePrompter is, therefore, entitled to partial summary judgment making the declarations outlined above, but as to the period before December 31, 1972, permitting the action to proceed.

Plaintiff argues, however, that although TelePrompter Manhattan was formed under the Transportation Corporations Law it lost its power of condemnation under that law when it was merged into TelePrompter Corporation, a stock corporation, because neither the merger plan nor the certificate of incorporation of the surviving corporation stated that the power of condemnation was retained. We do not pause to consider whether the power to condemn is essential (see Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 309 N.Y.S.2d 312, 257 N.E.2d 870) or whether, as defendants urge, section 906 (subd. [b], par. [1] ) of the Business Corporation Law and section 5 of the Transportation Corporations Law may be read to continue the condemnation power in the surviving stock corporation nonetheless (see Matter of City of New York [New York Water Serv. Corp.], 296 N.Y. 1016, 73 N.E.2d 724, affg. 271 App.Div. 1019, 69 N.Y.S.2d 508, affg. 67 N.Y.S.2d 850, 853 (Sup.); cf. Kittinger v. Churchill, 161 Misc. 3, 14, 292 N.Y.S. 35, affd. on opn. below 249 App.Div. 703, 292 N.Y.S. 51). Accepting the certified documents of which both sides urge that we take judicial notice (see People v. Flack, 216 N.Y. 123, 110 N.E. 167; Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 168), we conclude that, the merger of TelePrompter Manhattan into TelePrompter Corporation not having occurred until almost two years after the present action was begun and TelePrompter Corporation having thereafter be merged into Group W Cable Inc., a corporation incorporated under the Transportation Corporations Law, the argument, whatever its merit during the hiatus, should not be permitted to frustrate the purpose of the Legislature (see Executive Law, § 811) in enacting section 828 (see Knoth v. Manhattan Ry. Co., 187 N.Y. 243, 252, 79 N.E. 1015; Penthouse Props. v. 1158 Fifth Ave., 256 App.Div. 685, 692, 11 N.Y.S.2d 417; cf. Zion v. Kurtz, 50 N.Y.2d 92, 102, 428 N.Y.S.2d 199, 405 N.E.2d 681).

For the period prior to enactment of section 828 plaintiff may maintain her action in trespass, therefore, but unless one of her remaining arguments is valid, she is entitled for the period after that date only to compensation as fixed by the commission.

II

We turn then to plaintiff's statutory arguments and note, first, that the United States Supreme Court having held that the character of the governmental action involved in section 828 is a taking which entitles a property owner affected by it to compensation, the section is to be construed so as to sustain its constitutionality in light of that holding if possible (People v. Ferber, 52 N.Y.2d 674, 678, 439 N.Y.S.2d 863, 422 N.E.2d 523; Matter of Lorie C., 49 N.Y.2d 161, 171, 424 N.Y.S.2d 395, 400 N.E.2d 336; People v. Bell, 306 N.Y. 110, 114, 115 N.E.2d 821; McKinney's Cons. Laws of N.Y., Book 1, Statutes, § 150, subd. c). So much of our prior decision as reasoned that the Legislature intended to act under the police power only and not to require the payment of compensation having been invalidated by the Supreme Court's holding, the question becomes whether the language of the statute admits of a construction which provides a method for the determination of compensation for crossover and noncrossover situations. We conclude that it does.

Section 828 (subd. 1, par. b) expressly empowers the commission to determine the reasonable amount to be paid by a cable television company to a property owner in exchange for permitting cable television service on his property; subdivision 3 of section 816 authorizes the commission to compel the production of papers, the attendance of witnesses and their examination under oath in order to obtain the information necessary to administer any provisi of article 28 of the Executive Law; and subdivision 5 of the same section grants to the commission "all other powers necessary or appropriate to carry out the purposes" of the article. The commission is, therefore, empowered to fix reasonable compensation for a taking and provided with the procedural means for adjudication of that issue. The only seemingly contrary indication in the statute is the presence of the words "by regulation" in section 828 (subd. 1, par. b). However, those words when read in context are not inconsistent with the power of adjudication given the commission by section 816; what paragraph b of subdivision 1 does is authorize the commission to limit by regulation the highest amount a property owner may receive, unless on application by the property owner to the commission that body, after a section 816 hearing, fixes a higher sum as the reasonable compensation for the particular property. ³ The commission's regulations are entirely consistent with its being so empowered for they expressly provide (9 NYCRR 598.1-598.7) for just such an application and determination and establish rules as to pleadings, hearings and practice before the commission (9 NYCRR 590.3, 590.4, 590.6-590.10, 590.51-590.59) fully compatible with the usual process of adjudication.

For a number of reasons the exclusivity provision of the Eminent Domain Procedure Law (EDPL 101) does not, as plaintiff suggests, require a contrary conclusion. Foremost is that what we are construing is an Executive Law provision specially enacted to deal with and promote the cable television industry, containing express provision for the determination of reasonable compensation in other than a condemnation context but which, because it has now be held to constitute a de facto taking, must be applied in that context. The procedure established in the Executive Law was established in light of the expertise of the cable television commission, the small amount of space occupied by cable facilities and the large number of individual properties that would be involved if the legislative purpose of "maximum penetration * * * as rapidly as * * * feasible" (Executive Law, § 811) was to be accomplished. It was enacted three and a half years before the Eminent Domain Procedure Law and was not mentioned in chapter 840 of the Laws of 1977 by which some 30 different laws were amended or repealed in order to conform their provisions to the EDPL. The...